Bollo v. Secretary, Department of Corrections, State of Florida

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO. 24-62146-CIV-SMITH/HUNT
AUGUSTINE BOLLO,
Petitioner,
v.
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
Respondent.
__________________________________/
REPORT AND RECOMMENDATION
THIS CAUSE is before this Court on Respondent’s Motion to Dismiss the Petition
Based on a Lack of Jurisdiction. 	ECF No. 18. 	The Honorable Rodney Smith referred
Plaintiff’s Motions to the undersigned for a report and recommendation. ECF No. 11; see
also 28 U.S.C. § 636; S.D. Fla. L.R., Mag. R. 1. Upon thorough review of Respondent’s
Motion, 	the response thereto, the case file, 	and 	applicable law, 	the 	undersigned
respectfully RECOMMENDS that Respondent’s Motion be GRANTED for the reasons set
forth below.
Respondent claims this Court lacks jurisdiction over Petitioner’s claims because
he is not “in custody” for the purpose of 28 U.S.C. § 2254. The “in custody” requirement
of § 2254(a) is jurisdictional, so we must address it first and before any merits-related
matters like the applicable statute of limitations. 	Clements v. Fla., 59 F.4th 1204, 1209
(11th Cir. 2023).
Section 2254(a) of Title 28 states, in relevant part:
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[A] district court shall entertain an application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2254(a).
“[T]he ‘in custody’ requirement means ‘that the habeas petitioner [must] be “in
custody” under the conviction or sentence under attack at the time his petition is filed.’”
Birotte v. Sec’y for Dep’t of Corr., 236 F. App’x 577, 578 (11th Cir. 2007) (quoting Maleng
v. Cook, 490 U.S. 488, 490–91 (1989)). 	The Eleventh Circuit has observed that “once
the 	sentence 	imposed 	for 	a 	conviction 	has 	completely 	expired, 	the 	collateral
consequences of that conviction are not themselves sufficient to render an individual ‘in
custody’ for the purposes of a habeas attack upon it.” 	Id. (quoting Maleng, 490 U.S. at
492).
In the case underlying this Petition, Petitioner was charged with one count of lewd
or lascivious molestation. Following a jury trial, Petitioner was sentenced to 51 months’
imprisonment, and as a result of the conviction was required to register on Florida’s sex
offender registry. 	Petitioner has completed his prison sentence, but he remains subject
to the registry requirements.
Petitioner recognizes that the in-custody issue may be dispositive in this case.
ECF No. 17 at 1. Plaintiff maintains that despite not being imprisoned, he is nonetheless
“in custody” due to the residency restrictions imposed by his sex offender status. 	As
Petitioner recognizes, the Eleventh Circuit Court of Appeals considered and rejected a
similar argument in Clements v. Florida, 59 F.4th 1204 (11th Cir. 2023). ECF No. 1 at 22.
Petitioner further acknowledges that Clements is binding on this court. 	Id. 	However,
Petitioner argues that he is raising an argument not considered by the Clements court,
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namely that he is “in custody” in part due to the separate residency restrictions imposed
by his sex offender status and by state and local laws.
The Eleventh Circuit has explicitly acknowledged that, even after Clements, sex
offender residency restrictions “present a potential custodial constraint on [Petitioner’s]
liberty, and our Court explicitly left open the consideration of the restrictions.” Clements
v. Sec’y, Dep’t of Corr., No. 24-11353, 2025 WL 1892401, at *2 (11th Cir. July 9, 2025).
In support of his argument, Petitioner has filed what he defines as an analysis by forensic
computer scientist, John D. Sawicki, which Petitioner argues demonstrates that Petitioner
is excluded from the vast majority of the three largest cities in Sumter County, his county
of residence. ECF No. 17-1. The analysis consists of six maps allegedly demonstrating
the numerous areas from which Petitioner is excluded due to the residency restrictions
imposed by his status. Under this analysis, Petitioner argues, he is effectively in custody
for the purposes of a § 2254 petition.
Respondent objects to this Court’s consideration of the Sawicki analysis, as the
report is not sworn and no affidavit accompanies it, and it was not presented to the state
court. 	As for the argument that this is new evidence not brought prior to the current
Petition, the Eleventh Circuit has explicitly allowed “district court[s] to permit the parties
the opportunity to develop the record as to the restrictions imposed by Florida’s sex-
offender residency requirements.” Clements, 2025 WL 1892401, at *3.
More concerning is Respondent’s observation that Petitioner’s Supplement has no
supporting affidavits, no curriculum vitae, and no report explaining the methodology,
analysis, and findings. A court may when reviewing a Motion to Dismiss “consider matters
outside the pleadings if presented in proper form by the parties.” 	MGC Commc’ns, Inc.
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v. BellSouth Telecomms., Inc., 146 F. Supp. 2d 1344, 1349 (S.D. Fla. 2001). 	However,
“an unsworn representation is not evidence that meets Defendant’s burden to establish
that federal jurisdiction exists.” Hughes v. Fam. Dollar Stores of Fla., LLC, No. 3:23-CV-
784-MMH-MCR, 2023 WL 4784123, at *2 (M.D. Fla. July 27, 2023). Petitioner stated that
a sworn report would be forthcoming, but the record does not reflect that any such report
was ever filed. As it stands, then, the undersigned finds that the Sawicki analysis is not
properly before this Court for consideration.1
Without that analysis, Petitioner offers no evidence whatsoever that the residence
requirements are so limiting as to present a potential custodial constraint on Petitioner’s
liberty. Plaintiff has therefore failed to demonstrate that he is in custody for the purposes
of his § 2254 petition, and the Court lacks jurisdiction to consider his petition.
RECOMMENDATION
Based on the foregoing, the undersigned RECOMMENDS Respondent’s Motion
to Dismiss the Petition Based on a Lack of Jurisdiction, ECF No. 18, be GRANTED, and
the Petition dismissed.
Within fourteen (14) days after being served with a copy of this Report and
Recommendation, any party may serve and file written objections to any of the above
findings and recommendations as provided by the Local Rules for this district. 28 U.S.C.
§ 636(b)(1); S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely
object waives the right to challenge on appeal the District Court’s order based on
1 As is, even were the Court to consider the maps, they appear on the surface to be of
little help to Petitioner. Of course, absent explanatory documents, it is difficult to surmise
the value of the maps. And to be sure, the Sawicki analysis does show that portions of
the cities would be off limits to Petitioner, but they do not appear to demonstrate that
Petitioner is effectively shut out of the mapped areas.
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unobjected-to 	factual 	and 	legal 	conclusions 	contained 	in 	this 	Report 	and
Recommendation. 11th Cir. R. 3–1 (2018); see Thomas v. Arn, 474 U.S. 140 (1985).
DONE AND SUBMITTED at Fort Lauderdale, Florida this 13th day of January
2026.
_____________________________________
PATRICK M. HUNT
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
Honorable Rodney Smith
All Counsel of Record
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